Judge: Armen Tamzarian, Case: 20STCV47472, Date: 2023-05-03 Tentative Ruling

Case Number: 20STCV47472    Hearing Date: May 3, 2023    Dept: 52

Plaintiff/Cross-Defendant Outfront Media VW Communications, LLC’s Motion to Strike Portions of Second Amended Cross-Complaint

Plaintiff/cross-defendant Outfront Media VW Communications, LLC (Outfront) moves to strike two portions of the second amended cross-complaint by cross-complainants 7219-7225 West Sunset, LLC and Joseph Geoula. 

Punitive Damages

            Outfront moves to strike paragraph 45.B.IV of the second amended cross-complaint, which prays for punitive damages.  A party may move to strike a “demand for judgment requesting relief not supported by the allegations of the complaint.”  (CCP § 431.10(b)(3).)  Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) 

The second amended cross-complaint alleges sufficient facts for malice.  “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff  or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294(c)(1).)  “[T]o establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)  The plaintiff must show “that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Ibid.)

The second amended cross-complaint alleges Outfront “was maliciously allowing the Premises to deteriorate in order to obstruct the future course of business of West Sunset.  Outfront was aware of the imminency of the termination of the Lease, given that the term was to expire soon.  In light of such imminency, and once West Sunset had made it clear that it would not renew the Lease, Outfront proceeded to vindictively allow the Premises to deteriorate to the point they would become useless.”  (SACC, ¶ 31.)  

The second amended cross-complaint further alleges, “West Sunset advised Outfront that the Premises had been compromised and that there was significant damage as a result of the Sign. Outfront disregarded such warnings.  Outfront has repeatedly refused and keeps refusing to repair the damages.”  (¶¶ 37-38.)  “Outfront has deliberately allowed for the deterioration of the Premises in order to bar anyone else from entering a profitable business and compete against Outfront.”  (¶ 42.)

Cross-complainants thus allege Outfront knew it had to act, such as by making repairs, to avoid damaging cross-complainants’ property.  Outfront intentionally chose to take no action and to allow the damage to result.  Outfront did so because it wanted to harm cross-complainants in retribution for not renewing its lease.  As alleged, Outfront’s conduct was intended to injure cross-complainants.  That constitutes malice sufficient for punitive damages.  

Attorney Fees

Outfront also moves to strike paragraph 45.B.VII of the second amended cross-complaint, which prays for attorney fees for the second cause of action for negligence.  A plaintiff may only recover attorney fees when authorized by contract, statute, or other law.  (CCP § 1033.5(a)(10).)  Cross-complainants allege no such basis for recovering attorney fees.  Citing no authority, the opposition relies on the “rule that the prevailing party in an action that benefits a large number of people may recover attorney’s fees as a vindication of the right asserted which was of societal importance” and argues the alleged damage to the property “is detrimental to the safety of the vicinity.”  (Opp. p. 4.)  This is not an action to benefit many people or vindicate rights of societal importance.  This is a private dispute about commercial property.  The cross-complaint alleges damage to cross-complainants’ real property.    

Disposition

            Plaintiff/cross-defendant Outfront Media VW Communications, LLC’s motion to strike is granted in part with 15 days’ leave to amend.  The court hereby strikes the following portion of the second amended cross-complaint: “For attorney fees, per law, statute, and / or contract.”  (¶ 45.B.VII.)